EXHIBIT 10.06
AGREEMENT
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This document is to set forth the agreement ("Agreement") made and entered
into as of the 21st day of November, 2007, by and between AMB HTD - BEACON
CENTRE, LLC, a Florida limited liability company (the "Landlord"), and CARGO
CONNECTION LOGISTICS CORP., a Delaware corporation, (the "Tenant")
(collectively, the "Parties").
W I T N E S S E T H
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WHEREAS, Landlord owns the following described real property located in
Miami-Dade County, Florida: 0000 X.X. 00xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx
00000 (the "Premises") located in Building 20 at the Beacon Center;
WHEREAS, on or about September 30, 2004, Landlord entered into a written
lease agreement (the "Lease") with Tenant for the Premises;
WHEREAS, the original lease term was for five (5) years and five (5) months
from the Commencement Date, defined in Paragraph 1.3 of the Lease as the latter
of November 1, 2004, or the date that Landlord achieves substantial completion
of the demising wall. The Lease contemplated Tenant's rental of approximately
36,017 square feet of space, within a larger warehouse and office space
compromised of approximately 5,500 square feet.
WHEREAS, pursuant to Section 13 of the Lease, a default by the Tenant shall
be deemed to have occurred upon if, among other occurrences, Tenant failed to
pay any rent or other money which was due and owing for five (5) days after
written notice from Landlord;
WHEREAS, on or about October 25, 2007, Landlord, through counsel, sent a
Five-Day Notice to Pay Rent or to Deliver Possession, informing Tenant that it
was in default of the Lease for the failure to pay rent for the Premises, and
that it owed Landlord the sum of $94,673.43 (an amount which, after accrual of
November rent and other charges is presently $114,667.28) (the "Current
Balance");
WHEREAS, on or about November 2, 2007, Tenant defaulted under the Lease by
failing to pay the outstanding balance;
WHEREAS, in an effort to avoid the need to file an eviction action, the
Landlord is willing to give Tenant one final opportunity to cure its default;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in consideration of Ten and No/100 ($10.00) Dollars and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Incorporation of Recitals. The above recitals are true and correct
and are incorporated herein as if set forth in full.
2. General Provisions. All defined terms in this Agreement shall have
the same meaning as in the Lease, except as otherwise noted. Except as amended
and modified by this Agreement, all of the terms, covenants, conditions, and
agreements of the Lease shall remain in full force and effect. In the event of
any conflict between the provisions of the Lease and the provisions of this
Agreement, this Agreement shall control.
3. Payment. Tenant shall pay Landlord the following sums on the
following dates to satisfy the Current Balance, time being of the essence:
Payment in
reduction of
Date Due: Base Rent: amount owed: Total Payment:
-------- --------- ----------- -------------
November 26, 2007: $26,687.45 $13,343.73 $40,031.18
December 10, 2007: $26,687.45 $13,343.73 $40,031.18
January 5, 2008: $26,687.45 $13,343.73 $40,031.18
February 5, 2008: $26,687.45 $13,343.73 $40,031.18
March 5, 2008 $26,687.45 $13,343.73 $40,031.18
April 5, 2008 $26,687.45 $13,343.73 $40,031.18
May 5, 2008: $26,687.45 $7,917.45 $34,604.90
4. Method of Payment. All of the payments described in Paragraph 3
must be made in certified funds, made payable to:
AMB Property, Corp.
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxx, 00000-0000
5. Default. If, for any reason whatsoever, Tenant fails to pay
Landlord as specified in Paragraphs 3 and 4, then this Agreement is null and
void, and Tenant hereby agrees that Landlord, without any further notice or
instrument, is hereby authorized to obtain from an appropriate court, upon five
(5) days advance written counsel to Tenant's counsel, an entry of judgment
giving Landlord the immediate right to recovery of possession of the Premises.
Tenant hereby waives all defenses and counterclaims regarding any right of
possession of the Premises by Landlord, including, without limitation, waiver of
service of process and waiver of notice of the entry of any judgment. Tenant
hereby acknowledges and agrees that the immediate right to recovery of
possession of the Premises as described above is the only material incentive for
Landlord to enter into this Agreement, and that without Tenant's agreement
thereto, Landlord would not have entered into this Agreement..
6. No Waiver. This Agreement is merely intended to provide Tenant
with an opportunity to cure its previous defaults and to remain in the Premises.
Thus, in no way is Landlord waiving its rights or remedies under the Lease. To
the contrary, Landlord expressly reserves the right to bring an action to
enforce any other remedies provided in the Lease, or by law, including, but not
limited to, an action for damages for the past due and future rent pursuant to
the Lease.
7. Future Rent Payments. Upon the curing of Tenant's existing
defaults, all future rent payments shall be made in accordance with the
provisions of the Lease and the Lease will be deemed reinstated upon payment on
the June 2008 rent. Accordingly, nothing contained in this Agreement shall be
deemed to modify Tenant's future obligations to pay its regular monthly payments
of rent under the Lease for June of 2008 and each month thereafter during the
term of the Lease.
8. Facsimile & Counterparts. This Agreement may be executed by
facsimile signatures or scanned e-mail signatures or in any number of
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same Agreement.
9. Modification. This Agreement cannot be modified or amended except
in a writing executed by all Parties.
10. Representation of Counsel. The Parties hereto each represent and
warrant to each other that (i) they have had sufficient time to review this
Agreement and consult with counsel of their choice, (ii) they have received such
advice as they deem necessary as to their legal rights hereunder, and the
validity and enforceability of this Agreement, and (iii) they fully understand
the content and legal effect of this Agreement.
11. Interpretation. The Parties acknowledge that this Agreement has
been negotiated between unrelated, sophisticated, and knowledgeable parties who
have acted in their own self-interest and on advice of counsel. Accordingly, any
statute, law, ordinance, common law principles, treaty, protocol, legal
decision, convention, or other authority of any jurisdiction that would require
interpretation of any ambiguities in this Agreement against the party who
drafted this Agreement is not applicable and is hereby waived. The provisions of
this document shall be interpreted in a reasonable manner to effect its
purposes, and shall not be interpreted or construed against any person or entity
because that person or entity or any of its attorneys or representatives drafted
or participated in drafting this Agreement.
12. Entire Agreement. This Agreement constitutes the entire agreement
and contract between the Parties pertaining to the subject matter hereof. This
Agreement supersedes all prior or contemporaneous agreements, representations or
negotiations among the Parties hereto pertaining to the subject matter contained
herein, and cannot be modified or amended except in a writing executed by all
Parties.
13. Prevailing Party. In the event that either Party fails to perform
under the Agreement, the prevailing Party shall be entitled to reasonable
attorneys' fees and costs, through trial and through appeal. Each Party shall be
responsible for their own attorneys' fees incurred through the date of the
execution of this Agreement.
14. Authority. Each individual signing this Agreement on behalf of any
party represents and warrants that he or she has the right, legal capacity and
full authority to do so.
This Agreement is effective as of November 21st, 2007.
LANDLORD:
AMB HTD - BEACON CENTRE, LLC,
a Florida limited liability company
By: AMB Property, L.P., a Delaware limited
Partnership,
its sole member
By: AMB Property Corporation, a Maryland
corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Xxxxxxxx X. Xxxxxxxxx
VP, Regional Manager
TENANT:
CARGO CONNECTION LOGISTICS CORP., a
Delaware corporation,
By: /s/ Xxxxx Xxxxxxx, EXEC. VP
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Name: Xxxxx Xxxxxxx
Title: Executive Vice President
